Appeal No. EAT/771/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2000

Before
HIS HONOUR JUDGE D M LEVY QC
MR W MORRIS
PROFESSOR P D WICKENS OBE

IGW GROUP	APPELLANT

1) MRS C HARRISON  2) MISS J LORD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	MISS ANNETTE GUMBS
(of Counsel)
Instructed by:
Messrs Cyril Morris Arkwright
Solicitors
Churchgate House
Bolton BL1 1HS	
For the Respondent	Not attending
(written submissions 
received)

JUDGE D M LEVY QC

1	This is an interlocutory appeal by IGW Group (“the employer”) against a decision by an Employment Tribunal promulgated on 5 May 2000 and a further decision of the Employment Tribunal promulgated on 25 May 2000 dismissing an application for a review of its first decision.  

2	The decision appealed against was to strike out the company’s defence on the grounds that they had failed to comply with the Tribunal’s Order dated 4 April 2000 concerning the issue of disclosure.  We can all quite understand why the Chairman made the Order he did; the employer had behaved appallingly, in one aspect of this case, following commencement of proceedings by the Respondents (the Applicants below).

3	We turn to the helpful chronology which had been produced for this hearing which shows what happened.  Following complaints by them, the Respondents to this appeal sought relief from an Industrial Tribunal complaining of constructive dismissal.  

4	Before even the employer’s response had been entered, the employees’ solicitors wrote to the Respondent requesting personnel records.  On 30 January 2000 the IT3s were sent to the Employment Tribunal.  On 1 February 2000 the company wrote to the employees’ solicitors saying that personnel records would be supplied when particulars of the allegations made in the complaint had been received.  There was a suggestion that that letter was not received by the employees’ solicitors.  On 8 February the employees’ solicitors again wrote to the Respondent, requesting personnel records; on 14 February the Respondent sought further details of the allegations.  

5	On 25 February, there was a direction from the Employment Tribunal which inter alia said that the personnel records were to be made available forthwith.  On 29 February the employees’ solicitors proposed an appointment to look at those records on 7 March.  On 2 March, the company replied to the employees’ solicitors, indicating that their Mr Workman, who was their Managing Director, was out of the office and on his return would contact the solicitors to make an appointment for them to read the personnel files - not a happy way to comply with the clear Order of the Court dated 25 February.  

6	On 28 March, the solicitors called the company to confirm that they would be attending that day.  An attendance note of the Respondents suggests, and this is at page 72 of the bundle, that unless particulars were given of the allegation made by the employees in their complaint, was made available, the files would not be released.  

7	On 29 March the employees’ solicitors wrote to the Employment Tribunal seeking an Order under Rule 4(b) of the Tribunal Rules.  On 30 March, the company wrote to the Employment Tribunal seeking an Order for “proof” i.e. evidence of the accusations made by the employees, and the next important step was on 4 April, when the Employment Tribunal made an Order which is at page 81 of our bundle:
              “Rule 4(1)(b) Employment Tribunals Rules of Procedure 1993 (as amended).
The Tribunal HEREBY ORDERS that on reasonable notice on or before 17 April 2000 the Respondent shall produce for inspection at IGW Services Limited”
(the address is given)
“the documents specified below and permit copies to be taken.
All personnel records relating to Miss J Lord and Mrs C Harrison [the employees].”

There were notes attached to the Order indicating that:

“1)  Any person who without reasonable excuse fails to comply with a requirement under Rule 4(1)(b) of the Employment Tribunals Rules of Procedure 1993 is liable on summary conviction to a fine of up to £1,000.00 under Section 7(4) of the Employment Tribunals Act 1996.
2) Failure to comply with this order may also result in the whole or part of the notice of appearance being struck out at or before the hearing and in the Respondent being debarred from defending the application.
3) If this order is made in the Respondent’s absence, the Respondent may reply to the Tribunal to vary or set aside the order, but must do so before the period for compliance with the order has expired.”

8	Taking it shortly, the Order was not complied with, the company did not make an application to vary or set aside the Order before the period of compliance had expired.  Matters moved on in the next month, during which an Order was made for the Applicants to supply details of the allegations on which they relied, and the company continued to refuse to comply with the Order, unless they were given sight of the personnel records.  That stance was, for instance, set out in a letter dated 6 April.  The date for compliance of the Order passed without it being complied with.  

9	On 18 April the employees sought a Strike Out Order.  That resulted with the Order being made and the Chairman refusing to review his decision.  We could well understand why the Chairman made the Order.  However, unhappily, he failed to refer himself to a decision of this Court in Beacard Property Management and Construction Company Limited  v Day [1984] ICR 837 where Waite J, heading a Tribunal here under the previous Rules (which have not changed in substance) held that there was not a proper opportunity given to the employers to show cause why the Notice of Appearance should not be struck out. Furthermore, Ms Gumbs, who has appeared today on behalf of the company has taken us through a number of recent decisions including the judgment of Arrow Nominees Inc & Another v Blackledge [2000] Chancery Division 709.  There Evans-Lombe J held, and we take this from the first page:

“It was not a proper exercise of the court’s powers under the rules or its inherent power to strike out a claimant’s case where the claimant has found to be in contumacious breach of the Rules or an Order of the Court, or even guilty of conduct amounting to a fraud on the Court, or even guilty of conduct amounting to a fraud on the court, and so a gross contempt, if it could be shown that notwithstanding the claimant’s conduct, there was no substantial risk that a fair trial of his claim could not follow.  To strike out a contemnor’s case by reason of the contempt notwithstanding that the court took the view that a fair trial of his claim could follow, was likely to be a breach of art 6.1 of the European Convention on Human Rights.”

10	Although the company, as we have endeavoured to show, has behaved very badly, in failing to meet Orders of the Court, we are not satisfied that there could not have been a fair hearing of the case, or that an alternative penalty for the breach would not have been appropriate.  

11	In the circumstances, we have received written submissions from the Respondents, who have not attended, because of the financial implications of such an attendance, and we have taken those into account.  Certainly, the skeleton argument produced by their solicitors, helpfully refers us to some of the cases which appear consistent with the judgment of Evans Lombe J, to which we have referred.  

12	In paragraph 16.2 of their skeleton argument, they say this:-
“1	If the Appeal Tribunal is minded to allow the appeal then we would submit that the whole reason for these proceedings is because of the Appellant’s own actions.  At all times, despite criticism of the Respondents by the Appellant’s representative Mr I Workman, the Respondents have complied with all orders and were prepared for the hearing on the 15th May 2000 save for the late disclosure of the personnel records.  Indeed, the grounds for an appeal do not refer to the behaviour of the Respondent throughout the proceedings and do not seek to rely upon the same in terms of the appeal.  
2	If the Tribunal accepts the Appellant’s submission then regard must be had to the fact that in any event the hearing on Monday 15th May 2000 would in all likelihood not have proceeded due to the extremely late disclosure of the Respondents’ personnel records.  This is by the Appellant’s own admitted mistake in its grounds of appeal.  
3	If, the Appeal Tribunal feels that the striking out was an excessive sanction, then in the alternative a costs sanction against the Appellant is more appropriate having regard to the Appellant’s behaviour throughout these proceedings”

13	We do not go into the merits of the proceedings, but we do think that an alternative sanction, perhaps in costs, might have been appropriate.  

In the circumstances, we will set aside the Strike Out Order, but restore, for further hearing, before an Employment Tribunal an application for strike out made by the employees’ solicitors, for further consideration to be given to the appropriate penalty for the failure to comply with the Order.  

We would thank Ms Gumbs for her submissions which were made politely, despite the clear indication from the Court that the behaviour of her lay clients found no favour with them.